A federal appeals court ruled Monday that a Mexican family can proceed with a civil lawsuit against a U.S. Border Patrol agent who they say killed their teenage son while the boy was standing on Mexican soil.
The ruling from a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans said the allegations against the agent, Jesus Mesa Jr., if proven in court, would constitute "an official abuse of power so arbitrary as to shock the conscience."
Mesa is accused of shooting and killing 15-year-old Sergio Adrian Hernandez Guereca in 2010.
According to the complaint in the case, Hernandez Guereca was among a group children taunting Mesa along a barbed wire fence on the Mexican border near the Paso del Norte Bridge in El Paso, Texas. Mesa, who was patrolling the area on bicycle, stopped to detain one of the children when the others began throwing rocks at him.
While standing on U.S. soil, Mesa fired two shots across the fence, hitting Hernandez Guereca in the head while he watched the confrontation from underneath a bridge.
"No reasonable officer would have understood Agent Mesa's alleged conduct to be lawful," the judges wrote in the ruling.
Lawyers for the Hernandez Guereca family said this is the first time a court has extended protections of the U.S. Constitution to a noncitizen on the Mexican side of the border.
"It's a huge human rights victory,” said Robert Hilliard, one of the family’s attorneys. "It gives you a voice inside a U.S. courtroom. They have to focus on, 'Did the border agent do something wrong?’
"This recognizes human rights belong to everyone. Not just American citizens," Hilliard told The Associated Press.
Mesa’s attorney, Randolph J. Ortega, said he planned to ask the full appeals court to review the 2-1 decision.
“Classifying it as a leap is an understatement," Ortega told the Los Angeles Times. "They have extended the protections of the U.S. courts into foreign countries where the U.S. does not have any jurisdiction."
The Hernandez Guereca family originally sought to sue Mesa, the Border Patrol, the Department of Homeland Security, Customs and Borders Protection and the U.S. Department of Justice. But the panel of judges said responsibility for the agent’s actions cannot be extended to the supervisors in those agencies.
"The appellants (do not point to) any other evidence that would suggest that the supervisors were personally responsible for the alleged constitutional violation," the ruling reads.
Hilliard said he planned to appeal that part of the decision.
The Border Patrol declined to comment on the case, saying that doing so could open up the possibility of further litigation.